Date: 19990309
Docket: IMM-14-99
BETWEEN:
SHAVKIAT ABAEV,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent
REASONS FOR ORDER
REED J.:
[1] The applicant brings a motion for: an extension of time to file affidavits, extensions of time for the completion of other steps in this proceeding, and costs.
[2] The application for judicial review of the visa officer"s decision, which is the subject matter of the present proceeding, was filed on January 4, 1999. Pursuant to Federal Court Rule 318, the tribunal, (a visa officer in the the Immigration Section of the Canadian Consulate General in New York), was required to "transmit" the material in its possession relevant to the application within 20 days of the request for such being made:
| Within 20 days after service of a request under rule 317, the tribunal shall transmit |
| (a) a certified copy of the requested material to the Registry and to the party making the request... [emphasis added] |
[3] In the present case, then, the relevant material should have been transmitted to the Registry and the applicant by January 25, 1999. The respondent"s counsel received the tribunal material on January 28, 1999; the Federal Court Registry, in Ottawa, received it on February 9; and the applicant"s counsel in Toronto received it on February 19. Counsel for the applicant, therefore, sought, on February 19, consent from counsel for the respondent for an extension of time within which to file the applicant"s affidavits. Under Rule 306, such affidavits are to be filed within 30 days after the filing of the notice of application, that is ten days after the relevant tribunal material is required to have been transmitted. In this case that would have been by February 4, 1999.
[4] The request for consent to an extension of time was refused. Counsel for the applicant, therefore, on February 24 filed the present motion. On February 26, counsel for the respondent consented to the extension of time that had been requested. Counsel for the applicant pursued this motion, however, to obtain extensions of time for the other remaining steps of the proceeding, to obtain an order setting a date for the hearing of the application in a timely way, and for costs.
[5] With respect to the first of the above, counsel for the respondent states that the respondent"s affidavits will be filed by March 24, 1999, and an extension of time is not necessary. He also takes the position that there is no reason, at the moment, for extensions of time for the remaining application steps and that the ordinary rules of procedure should continue to apply. An order will issue that the respondent file her affidavits by March 24, 1999. I agree that there is at present no reason to depart from the normal time constraints for the subsequent steps, which constraints are set out in the Rules .
[6] I am not in a position to grant the hearing date request. A request for a hearing date must be made in the normal way by the filing of a hearing requisition, which is then dealt with in the ACJ"s office.
[7] The applicant"s request for costs is based to a significant degree on counsel"s argument that the tribunal itself ( i.e. the New York visa office and the respondent"s Ottawa office) did not comply with the Federal Court Rules : the relevant material was not "transmitted" within the required time. This requires a consideration of whether transmittal requires more than delivering the requested material to the post office.
[8] The Immigration Section of the Canadian Consulate General in New York sent the material by diplomatic bag to Ottawa, with a covering letter dated January 21, 1999. The Ottawa office then sent it by parcel post to the applicant"s counsel in Toronto. The applicant"s counsel notes that the stamp on the material he received, attesting to the fact that what was sent was a "certified copy", carries the date January 25, 1999. Thus, the material could not have left the Ottawa office any earlier than that date, and whatever method of transmission was used, it did not arrive in the Ottawa Federal Court Registry until February 9, 1999. As noted, it arrived in counsel for the applicant"s Toronto office on February 19. Counsel argues that in the circumstances the respondent should have consented to his request for an extension of time, when asked to do so on February 19, 1999, and that his client should not have been put to the unnecessary cost of having to prepare, file and serve the present motion in order to obtain such consent. At the time of the refusal of consent, counsel for the respondent was not convinced that counsel for the applicant had not received the material before February 19, 1999.
[9] Of some significance is the meaning of the words "shall transmit" in Rule 318. The question that arises is whether "transmit" means more than "send". The Shorter Oxford Dictionary (3rd ed., 1973) carries the following definition of the word "transmit":
[t]o cause (a thing) to pass, go, or be conveyed to another person, place or thing; to send across an intervening space; to convey, transfer.
The word "transmission" is defined as meaning:
[t]he action of transmitting or fact of being transmitted; conveyance from one person or place to another; transference.
[10] In Le Nouveau Petit Robert 1 (1993) the word "transmettre" is defined as "faire passer d"une personne à une autre, d"un lieu à un autre."
[11] There is certainly a convincing argument that the tribunal has a greater obligation under this Rule than merely to send the applicant, on the last day of the required time, the relevant material. The respective dictionary definitions of the words "send" and "envoyer" are:
send - to order or direct to go or be conveyed ... to dispatch ... to cause (a thing) to be conveyed or transmitted by an intermediary to another person or place.
envoyer - faire aller, faire partir ... faire parvenir (qqch. à qqn) par l"intermédiaire d"une personne ou des postes.
[12] The dictionary definitions of the relevant words then indicate that transmit (transmet) means more than merely depositing in the post without regard to the amount of time it might take to reach the applicant or his counsel. Such a conclusion is also consonant with the scheme of the Rules and their context as a whole. The Rules clearly intend that the applicant have access to the relevant tribunal material before his or her affidavits are required to be filed, in order to review that material to see if it is relevant for the purpose of the preparing of the affidavits. The Rules allow for a ten day difference between the transmitting of the material and the filing of the affidavits. The action taken in the present case did not constitute the transmitting of the material to the applicant within the required time.
[13] Accordingly, I am persuaded that the applicant should have his costs of the present motion. I fix these at $1,000.
"B. Reed"
J.F.C.C.
TORONTO, ONTARIO
March 9, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-14-99
| STYLE OF CAUSE: SHAVKIAT ABAEV, |
and -
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION, |
DATE OF HEARING: MONDAY, MARCH 8, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: REED J. |
DATED: TUESDAY, MARCH 9, 1999
APPEARANCES: Mr. Timothy Leahy
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Timothy Leahy
Barrister & Solicitor
408-5075 Yonge St.,
North York, Ontario
M2N 6C6
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990309
Docket: IMM-14-99
Between:
| SHAVKIAT ABAEV, |
| Applicant |
- and -
| THE MINISTER OF CITIZENSHIP |
| AND IMMIGRATION, |
Respondent
REASONS FOR ORDER